The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES H. MONTGOMERY, III, DOCKET NUMBER
Appellant, DC-1221-21-0305-W-1
v.
DEPARTMENT OF HOMELAND DATE: May 1, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James H. Montgomery, III , Augusta, Georgia, pro se.
David Myers , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication, including a hearing, in accordance with this Remand Order.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
At all times relevant to this appeal, the appellant occupied the position of
GS-14 Supervisory Civil Rights Analyst with the Federal Emergency
Management Agency (FEMA)’s Office of Equal Rights (OER). In his
March 20, 2021 initial appeal to the Board, he claimed that his superiors denied
his within-grade increase and committed harmful procedural error in
“terminating” his approved sick leave. Initial Appeal File (IAF), Tab 1 at 3, 5.
He also stated that management retaliated against him for participating in
protected activity, specifying that he “filed complaints and provided oral
and written testimony in inquiries reviewing [OER’s] toxic work environment.”
Id. at 5. The appellant requested a hearing. Id. at 2. The administrative judge
issued a jurisdictional show-cause order addressing all of the appellant’s claims,
including his claim of whistleblower retaliation. IAF, Tab 3.
In his response, the appellant stated, inter alia, that he filed a whistleblower
reprisal complaint with the Office of Special Counsel (OSC) in which he claimed
that management had retaliated against him for his participation in investigations
of actions and the work environment of OER. IAF, Tab 7 at 6. In his response to a
subsequent jurisdictional order, IAF, Tab 13, the appellant alleged “gross
mismanagement, abuse of authority, and harassment that created a hostile work
environment in the OER” in connection with the following personnel actions:
(1) suspending him in October 2019; (2) placing him on a performance improvement plan
(PIP) and denying his within-grade increase on November 18, 2020; (3) retroactively
denying his previously approved sick leave, and (4) failing to provide him “timely
guidance and feedback on [his] assignments.” IAF, Tab 14 at 5-9. The appellant asserted
that these actions were taken by three specific OER supervisors. Id. at 5. He further
alleged that the actions were in retaliation for the following protected disclosures and
activities: (1) his March 19, 2019 response to an Office of Inspector General (OIG)
questionnaire; (2) his participation in an OIG interview on June 12, 2019, regarding OER
management and the Anti-Harassment Program; (3) a statement he provided to the
3
agency’s Office of Professional Responsibility (OPR) on November 21, 2019,
regarding the work environment in the OER; (4) his testimony to the agency’s OPR on
June 25, 2020, regarding an investigation of the OER work environment; (5) an undated
letter he wrote to the then-FEMA Administrator, “to register [his] opposition to
[retroactive sick leave denial] and other abuse of power actions by the OER leadership;”
and (6) his statement to the agency’s Deputy Associate Administrator regarding the OER
work environment. Id. at 5-7. In support of his claim of retaliation, the appellant also
submitted numerous documents, including an unsigned and undated copy of his
affidavit in connection with an EEO complaint in which he alleged discrimination
based on race, national origin, sex, and age, as well as retaliation for previous
EEO activity, Id. at 34-46, and a partial copy of what appeared to be a second
EEO complaint. Id. at 92-93.
In its response, the agency urged that the appeal be dismissed for lack of
jurisdiction because the appellant failed to exhaust his remedy before OSC,
because retaliation based on EEO matters cannot be heard in an IRA appeal, and
because the appellant failed to nonfrivolously allege that he made protected
disclosures that were a contributing factor in a covered personnel action.
IAF, Tab 15.
In an initial decision based on the written record, the administrative judge
first found that the appellant failed to establish Board jurisdiction as an otherwise
appealable action over both the alleged denial of his within-grade increase and
the termination of his previously approved leave. IAF, Tab 16, Initial Decision
(ID) at 6-8. In addressing the appellant’s IRA appeal, the administrative judge
found that he failed to show that he exhausted his claims before OSC,
ID at 12-15, with the exception of his allegation of retaliation for EEO
activity, but that that claim could not be heard in the context of an IRA appeal.
ID at 15-17. On review of the appellant’s specific responses to the jurisdictional
issues, the administrative judge found that some of the alleged actions of which
the appellant complained were not covered personnel actions, ID at 24-26, and
4
that he failed to make a nonfrivolous allegation that he engaged in whistleblowing
activity regarding several of his proffered disclosures and activities, warranting
a dismissal of all claims predicated upon such unprotected disclosures and activities.
ID at 17-21. The administrative judge also found that the appellant failed to make a
nonfrivolous allegation that he engaged in whistleblowing activity by making a protected
disclosure or engaging in protected activity regarding four of his disclosures/activities
and that, therefore, the Board lacked jurisdiction over the appellant’s allegations
predicated on these disclosures/activities. ID at 21-24. Finally, the administrative judge
found that the appellant’s allegations and arguments did not constitute a nonfrivolous
allegation that his disclosures or activities were a contributing factor in the agency
actions at issue in this appeal. ID at 27-29. For all these reasons, the administrative
judge dismissed the appellant’s IRA appeal for lack of jurisdiction. ID at 1, 30.
The appellant has filed a petition for review, Petition for Review (PFR) File,
Tab 1, and the agency has filed a response, PFR File, Tab 3.
ANALYSIS
Contrary to the administrative judge’s findings, the appellant exhausted his
remedy with OSC regarding some disclosures and activities and some personnel
actions.
To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an
appellant must have provided OSC with a sufficient basis to pursue an
investigation into his allegations of whistleblower reprisal. Skarada v.
Department of Veterans Affairs, 2022 MSPB 17, ¶ 7; Chambers v. Department of
Homeland Security, 2022 MSPB 8, ¶ 10. Generally, exhaustion can be
demonstrated through the appellant’s OSC complaint, evidence that he amended
the original complaint, including but not limited to OSC’s preliminary
determination letter and other letters from OSC referencing the amended
allegations, and the appellant’s written responses to OSC referencing the
amended allegations. Skarada, 2022 MSPB 17, ¶ 7; Mason v. Department of
Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). Alternatively, exhaustion may
5
be proven through other sufficiently reliable evidence, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in his appeal. Skarada, 2022 MSPB 17, ¶ 7; Chambers, 2022 MSPB 8, ¶ 11. To
establish Board jurisdiction, the appellant must prove exhaustion with OSC by
preponderant evidence, not just present nonfrivolous allegations. 5 C.F.R.
§ 1201.57(c)(1).
Although he did not submit a copy of his OSC complaint, the appellant did
submit a copy of OSC’s January 5, 2021 preliminary determination to close his
complaint, and a copy of its January 19, 2021 final determination to close his
complaint. IAF, Tab 7 at 33, 35. The administrative judge considered these two
documents from OSC, but found that they were conclusory and provided very
limited information concerning specific allegations raised by the appellant.
ID at 14-15. We disagree.
In its preliminary determination, OSC acknowledged the appellant’s claims
that, from August 2018 to the present, he engaged in protected activity when
he filed an EEO complaint and provided statements in five inquiries into alleged
toxic management behavior in the OER and the taking of unlawful personnel
actions and abuse of authority, and when he supported other employees in
opposing adverse actions taken against them. IAF, Tab 7 at 35-36. OSC also
acknowledged the alleged personnel actions of which the appellant complained as
including a 2-day suspension in October 2019, a 5-day suspension in September
2020, a low performance rating on January 30, 2020, receiving no responses to
travel vouchers he submitted, receiving insufficient feedback on work
assignments, not having his sick leave requests properly addressed, a hostile work
environment/harassment, being placed on a PIP, and being denied a within-grade
increase. Id. at 35. In its final determination to close his complaint, OSC again
described the appellant’s claims that, on multiple occasions, he was asked to
provide testimony in connection with internal agency administrative
investigations, and that he filed complaints. Id. at 33. Because the appellant
6
raised these matters to OSC, as set forth above, he exhausted his remedy with
OSC as to those matters.
The administrative judge erred in determining that the appellant failed to make
the necessary nonfrivolous allegations to support Board jurisdiction.
In addition to proving that he exhausted his administrative remedies before
OSC, in order to establish Board jurisdiction in an IRA appeal, an appellant must
make nonfrivolous allegations that (1) he made a disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Linder v. Department of
Justice, 122 M.S.P.R. 14, ¶ 6 (2014); see 5 U.S.C. §§ 1214(a)(3), 1221(c)(1).
Despite finding that the appellant failed to establish exhaustion, the
administrative judge went on to consider whether the appellant nonfrivolously
alleged that he made protected disclosures or engaged in protected activity that
contributed to the agency’s taking a covered personnel action against him. In
determining that the appellant failed to make such allegations, the administrative
judge relied upon and, in fact, quoted extensively from, an agency pleading
submitted in its response to her order on proof and jurisdiction in which the
agency made arguments regarding the evidence, and the administrative judge
summarily adopted those findings. IAF, Tab 15; ID at 17-29.
In Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369 (Fed.
Cir. 2020), our reviewing court held that, “when evaluating the Board’s
jurisdiction over a whistleblower action, the question of whether the appellant has
non-frivolously alleged protected disclosures that contributed to a personnel
action must be determined based on whether the employee alleged sufficient
factual matter, accepted as true, to state a claim that is plausible on its face. The
Board may not deny jurisdiction by crediting the agency’s interpretation of the
evidence as to whether the alleged disclosures fell within the protected categories
7
or whether the disclosures were a contributing factor to an adverse personnel
action.” Id. Because the administrative judge relied heavily on the agency’s
interpretation of the evidence, her findings on the sufficiency of the appellant’s
nonfrivolous allegations, with one exception, run afoul of Hessami. 2
Accordingly, we have reviewed the record to determine whether the appellant has
alleged sufficient factual matter, accepted as true, to state a claim that is plausible
on its face. Hessami, 979 F.3d at 1369.
The appellant nonfrivolously alleged that he made protected disclosures and
engaged in protected activity.
The appellant alleged below that he made protected disclosures and
participated in protected activities. He referred to statements he made and
answers he provided in investigatory interviews regarding the OER work
environment, specifically, his statement to the agency’s Deputy Associate
Administrator on March 25, 2019, his responses to an OIG questionnaire on
March 29, 2019, information he provided in an OIG interview on June 12, 2019,
and testimony he provided to the OPR on November 21, 2019, and June 25, 2020,
in connection with two investigations. IAF, Tab 7 at 7-8. According to the
appellant, in all these instances, he detailed abuse of authority by OER
leadership, including harassing behavior toward staff and employees who spoke
out or filed complaints opposing abusive practices, rating employees unfairly, and
not responding to their requests for constructive work feedback. Id. at 6.
2
We agree with the administrative judge’s finding that the Board lacks jurisdiction over
the appellant’s claim that the agency retaliated against him for having filed an EEO
complaint in which he raised allegations of discrimination and retaliation for prior EEO
activity. ID at 15-17. The Board lacks jurisdiction over such claims in the context of
an IRA appeal because there is no indication that the substance of the complaint
concerned remedying a violation of whistleblower retaliation under 5 U.S.C. § 2302(b)
(8), and thus, it does not constitute a nonfrivolous allegation of protected activity under
5 U.S.C. § 2302(b)(9)(A)(i). Young v. Merit Systems Protection Board, 961 F.3d 1323,
1329 (Fed. Cir. 2020); see Edwards v. Department of Labor, 2022 MSPB 9, ¶ 22
(explaining that, in line with long-standing administrative and judicial interpretation,
Title VII-related claims are excluded from protection under whistleblower protection
statutes).
8
We first address the appellant’s alleged responses to and interview with the
OIG. Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity
when he cooperates with or discloses information to an agency’s OIG or to OSC
“in accordance with applicable provisions of law.” Under that broadly worded
provision, any disclosure to the OIG or OSC regardless of its content is protected
so long as such disclosure is made in accordance with applicable provisions of
law. Fisher v. Department of the Interior, 2023 MSPB 11 ¶ 8. Therefore, the
appellant’s claims that he responded to an OIG questionnaire and provided
information in an OIG interview constitute a nonfrivolous allegation that
he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).
Regarding the appellant’s alleged responses to the OPR’s inquiries, we note
that, prior to December 12, 2017, 3 the whistleblower protection statutory scheme
at 5 U.S.C. § 2302(b)(9)(C) provided that “cooperating with or disclosing
information to the Inspector General of an agency, or the Special Counsel, in
accordance with applicable provisions of law,” is protected. However, on that
date, section 1097(c)(1) of the National Defense Authorization Act of 2018
amended section 2302(b)(9)(C) to provide that, in addition to an agency’s OIG or
OSC, a disclosure to “any other component responsible for internal investigation
or review” is also protected.” Edwards v. Department of Labor, 2022 MSPB 9,
¶ 29. We need not determine whether the OPR is such a component. At this
stage of the proceeding, the appellant is only required to make a nonfrivolous
allegation that he engaged in protected activity. Regarding his alleged responses
to the OPR’s inquiries, we find that the appellant has done so. 4
As noted, the appellant also alleged that he made protected disclosures in
statements to the agency’s Deputy Associate Administrator. According to the
3
All events at issue took place after December 12, 2017, the effective date of the
National Defense Authorization Act of 2018.
4
During the merits portion of his appeal on remand, the appellant will be required to
establish, inter alia, that the OPR is, in fact, “a component responsible for internal
investigation or review.”
9
appellant, he told the Deputy Associate Administrator that the OER is a toxic
office, that it lacks integrity, and that those whose views are different than
management’s are subjected to deliberate attacks on their ability and competence.
IAF, Tab 8 at 14. To the extent the appellant’s claims purport to suggest an abuse
of authority within the OER, we note that, for purposes of the Whistleblower
Protection Act, an abuse of authority occurs when there is an arbitrary or
capricious exercise of power by a Federal official or employee that adversely
affects the rights of any person or that results in personal gain or advantage to
himself or to other preferred persons. Chavez v. Department of Veterans Affairs,
120 M.S.P.R. 285, ¶ 22 (2013). To the extent the appellant’s claims purport to
suggest gross mismanagement within the OER, gross mismanagement means
Government action or inaction which creates a substantial risk of significant
adverse impact upon the agency’s ability to accomplish its mission. Francis v.
Department of the Air Force, 120 M.S.P.R. 138, ¶ 12 (2013). An appellant’s
disclosures must be specific and detailed, however, not vague allegations of
wrongdoing regarding broad or imprecise matters. Rzucidlo v. Department of the
Army, 101 M.S.P.R. 616, ¶ 13 (2006). Here, we find that, as the appellant
describes them, the disclosures he made to the agency’s Deputy Associate
Administrator are conclusory and lacking in specificity and, as such, do not
constitute nonfrivolous allegations that support IRA jurisdiction.
The appellant nonfrivolously alleged that he was subjected to covered personnel
actions.
We have found that the appellant exhausted his remedy with OSC as to five
alleged personnel actions that he raised in his appeal to the Board: his
October 2019 suspension, his placement on a PIP, the denial of his within-grade
increase, the retroactive denial of his sick leave requests, and the agency’s failure
to provide him with feedback on his work assignments. He has nonfrivolously
alleged that the first four actions are covered personnel actions under 5 U.S.C.
§ 2302(a)(2)(A)(iii) and (ix). Regarding the fifth alleged action, the agency’s
10
failure to provide him with feedback on his work assignments, the appellant has
not alleged facts that would support a finding that any such failure on the
agency’s part resulted in a significant change in duties, responsibilities, or
working conditions. 5 U.S.C. § 2302(a)(2)(A)(xii). In Skarada, 2022 MSPB 17,
¶¶ 15-16, the Board clarified, that under this category of covered personnel
action, the change must have a practical and significant impact on the overall
nature of an employee’s working conditions, responsibilities, or duties. Other
than stating that the agency failed to provide him with feedback on his work
assignment and that managers’ responses often came after a project’s deadline,
IAF, Tab 14 at 8, the appellant has not indicated that the agency’s action had a
significant impact on his working conditions, and therefore, he has not made a
nonfrivolous allegation that the agency’s action constituted a covered personnel
action.
The appellant nonfrivolously alleged that his protected activity was a contributing
factor in some personnel actions.
To satisfy the contributing factor criterion at the jurisdictional stage of
an IRA appeal, the appellant need only raise a nonfrivolous allegation that the
fact or the content of the protected disclosure, or the fact of the protected activity,
was one factor that tended to affect a covered personnel action in any way.
Salerno v. Department of the Interior, 123 M.S.P.R. 230, 13 (2016). One way to
establish the contributing factor criterion is the knowledge/timing test, under
which an employee may nonfrivolously allege that the protected disclosure or
activity was a contributing factor in a personnel action through circumstantial
evidence, such as evidence that the official who took the action knew of the
disclosure or activity and that the personnel action occurred within a period of
time such that a reasonable person could conclude that the disclosure or activity
was a contributing factor in the personnel action. Ontivero v. Department of
Homeland Security, 117 M.S.P.R. 600, ¶ 21 (2012). Regarding the knowledge
part of the knowledge/timing test, the appellant asserts that his protected activity
11
was directed at OER leadership, and that they were aware of the statements,
allegations, participation, and opposition and were required to respond by
affidavit to the issues raised. IAF, Tab 8 at 14. Given that these individuals were
the same persons who were responsible for the alleged covered personnel actions
(the appellant’s two first-level supervisors and his second-level supervisor),
we find that the appellant has raised a nonfrivolous allegation that they had
knowledge of his involvement in the OIG and OPR inquiries. Regarding the
timing portion of the knowledge/timing test, the appellant asserts that
he answered the OIG’s questionnaire on March 19, 2019, and was interviewed by
the OIG on June 12, 2019, and that he provided testimony to the OPR on
November 21, 2019, and June 25, 2020. IAF, Tab 7 at 4-5. He further asserts
that the agency suspended him on October 10, 2019, placed him on a PIP and
denied his within-grade increase on November 18, 2020, and retroactively denied
his sick leave request on October 28, 2020. IAF, Tab 14 at 9. Under the
circumstances, we find that the appellant has nonfrivolously alleged that a
reasonable person could conclude that the protected activity was a contributing
factor in the covered personnel actions. Scoggins v. Department of the Army,
123 M.S.P.R. 592, ¶ 25 (2016) (finding that a personnel action that occurs within
2 years of a protected disclosure satisfies the timing portion of the
knowledge/timing test).
Because the appellant has established the Board’s jurisdiction over his IRA
appeal, it must be remanded to the regional office for adjudication on the merits,
including the hearing the appellant requested. Linder, 122 M.S.P.R. 14, ¶ 6.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall address the appellant’s claimed protected activity of
making statements and responding to OIG regarding the OER work environment,
12
and his similarly responding to the OPR. The administrative judge shall further
address the appellant’s following claimed personnel actions: his October 2019
suspension, his placement on a PIP and the denial of his within-grade increase,
and the retroactive denial of his sick leave requests.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.